Plaintiffs' Brief in Opposition to Defendants' Motion for Summary by 8be89c015e72c297

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									                      IN THE UNITED STATES DISTRICT COURT
                    FOR THE WESTERN DISTRICT OF OKLAHOMA

Heather Finstuen, et al.,                   )
                                            )
                            Plaintiffs,     )
versus                                      )              Case No.: CIV-04-1152C
                                            )
Drew Edmondson, in his official capacity )
   as Attorney General of Oklahoma, et al., )
                                            )
                            Defendants. )




                       PLAINTIFFS’ BRIEF IN OPPOSITION TO
                DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
                ____________________________________________________



       Pursuant to FED.R.CIV.P. 56 and LCvR 56.1(c), plaintiffs submit the following brief in

opposition to defendants’ Motion for Summary Judgment.




   Sandy Ingraham, OBA No. 15322               Kenneth D. Upton, Jr., OBA No. 12906
                                                    F. Brian Chase, pro hac vice
  Ingraham & Associates, P.L.L.C.          Lambda Legal Defense and Education Fund, Inc.
          Route 2, Box 369-B                     3500 Oak Lawn Avenue, Suite 500
          McLoud, OK 74851                               Dallas, TX 75219
     Telephone: (405) 964-2072                      Telephone: (214) 219-8585
      Fax: (405) 964-2058 (fax)                         Fax: (214) 219-4455
 E-Mail: ingraham@mcloudteleco.com              E-Mail: kupton@lambdalegal.org
                                                           bchase@lambdalegal.org

                             ATTORNEYS FOR PLAINTIFFS
                            BRIEF IN OPPOSITION TO DEFENDANTS’
                             MOTION FOR SUMMARY JUDGMENT


Table of Contents ......................................................................................................................... i


Index of Authorities ..................................................................................................................... ii



I.         RESPONSE TO DEFENDANTS’ STATEMENT OF FACTS ..................................1


II.        ARGUMENT AND AUTHORITY ...............................................................................5

           A.         PLAINTIFFS HAVE STANDING TO CHALLENGE OKLAHOMA’S ADOPTION
                      INVALIDATION LAW. .............................................................................................5

           B.         DEFENDANTS HAVE OFFERED NO LEGALLY COGNIZABLE
                      JUSTIFICATION FOR FAILING TO FOLLOW THE CONSTITUTION’S
                      FULL FAITH AND CREDIT REQUIREMENTS. ...........................................................8

           C.         THE ADOPTION INVALIDATION LAW UNCONSTITUTIONALLY
                      INFRINGES ON PLAINTIFFS’ RIGHT TO TRAVEL. ..................................................12

           D.         THE DEFENDANTS’ FLAWED ANALYSIS FAILS TO JUSTIFY THE
                      ADOPTION INVALIDATION LAW’S DENIAL OF PLAINTIFFS’ RIGHTS
                      TO EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS. ...............................15


III.       CONCLUSION ...........................................................................................................20




                                                                       i
                                                   Index of Authorities

Decisional Authority

   Baker v. Gen. Motors Corp., 522 U.S. 222 (1998) ....................................................................9
   Bowers v. Hardwick, 478 U.S. 186 (1986) ..............................................................................17
   Buchwald v. Univ. of N.M. School of Medicine,
         159 F.3d 487 (10th Cir. 1998) .......................................................................................7
   Carey v. Population Servs. Int’l, 431 U.S. 678 (1977)............................................................17
   Citizens for Equal Prot., Inc. v. Bruning, 290 F.Supp.2d 1004 (D. Neb. 2003),
           appeal docketed, No. 05-2604 (8th Cir. June 10, 2005) ...............................................7
   City of Akron v. Beil, 660 F.2d 166 (6th Cir. 1981).................................................................14
   Conville v. Bakke, 400 P.2d 179 (Okla. 1965).........................................................................11
   Davis v. Davis, 708 P.2d 1102 (Okla. 1985) ..........................................................................14
   Dunn v. Blumstein, 405 U.S. 330 (1972) .................................................................................19
   Edwards v. Valdez, 789 F.2d 1477 (10th Cir.1986).................................................................19
   Eisenstadt v. Baird, 405 U.S. 438 (1972) ................................................................................17
   Ex parte Moulin, 203 Okla. 99, 217 P.2d 1029 (1950)............................................................11
   Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979) ....................................................5
   Griswold v. Connecticut, 381 U.S. 479 (1965)........................................................................17
   Heckler v. Mathews, 465 U.S. 728 (1984).................................................................................7
   Lawrence v. Texas, 539 U.S. 558 (2003).........................................................16, 17, 18, 19, 20
   Lofton v. Sec’y of Dep’t of Children & Family Servs.,
          358 F.3d 804 (11th Cir. 2004) .....................................................................................17
   Lofton v. Sec’y of Dep’t of Children & Family Servs.,
          377 F.3d 1275 (11th Cir. 2004) ..................................................................................18
   Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................6
   M.L.B. v. S.L.J., 519 U.S. 102 (1996) ......................................................................................14
   Magnolia Pet. Co. v. Hunt, 320 U.S. 430 (1943) ......................................................................9
   Michael C. ex rel. Stephen C. v. Radnor Twp. Sch. Dist.,
         202 F.3d 642 (3rd Cir. 2000) .......................................................................................14
   Moore v. City of East Cleveland, 431 U.S. 494 (1977) ..........................................................14


                                                              ii
   Nevada v. Hall, 440 U.S. 410 (1979).........................................................................................9
   Ne. Fla. Chapter of Associated Gen. Contractors of Am.
           v. City of Jacksonville, 508 U.S. 656 (1993) ................................................................7
   Nova Health Sys. v. Gandy, 388 F.3d 744 (10th Cir. 2004) ......................................................5
   Pickett v. Brown, 462 U.S. 1 (1983) .......................................................................................19
   Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)...................................14, 17, 19
   Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)......................................................7
   Roe v. Wade, 410 U.S. 113 (1973)...........................................................................................17
   Romer v. Evans, 517 U.S. 620 (1996)............................................................................7, 16, 20
   Saenz v. Roe, 526 U.S. 489 (1999) ........................................................................................13
   Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).........................................................5
   Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977) ........................16
   Stanley v. Illinois, 405 U.S. 645 (1972)...................................................................................16
   Troxel v. Granville, 530 U.S. 57 (2000) ........................................................................8, 14, 19
   United States v. Students Challenging Regulatory Agency Procedures,
          412 U.S. 669 (1973).......................................................................................................6
   Williams v. North Carolina, 317 U.S. 287 (1942) .............................................................10, 12


Statutory Authority

   OKLA. STAT. tit. 10, § 7505-6.5 (2001) ...................................................................................16
   OKLA. STAT. tit. 63, § 1-106(B)(2) (Supp. 2004) ......................................................................5
   OKLA. STAT. tit. 63, § 1-316 (2001) ..........................................................................................5


Secondary Authority

   1-4 ADOPTION LAW & PRACTICE, § 4.02 (Matthew Bender, 2003).........................................10
   2004 OK AG 8 .........................................................................................................................11
   EUGENE F. SCOLES ET AL., CONFLICT OF LAWS 678 (3d ed. 2000)...........................................10
   Jean A. Mortland, Interstate Federalism: Effect of Full Faith
           and Credit to Judgments, 16 U. DAYTON L. REV. 47 (1990) .....................................12



                                                                  iii
JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS 716 & nn.2-3 (1935)..................10
Ralph U. Whitten, Choice of Law, Jurisdiction, and Judgment Issues
      in Interstate Adoption Cases, 31 CAP. U.L. REV. 803 (2003) .....................................10
RESTATEMENT (SECOND) OF CONFLICT OF LAWS, ch. 11,
      topic 3, introductory note (1971) ................................................................................16
RESTATEMENT (SECOND) OF JUDGMENTS § 31(1)(a) ...............................................................10




                                                         iv
              I.        RESPONSE TO DEFENDANTS’ STATEMENT OF FACTS


       1)          Plaintiffs agree that the factual statements contained in paragraphs 1 through 10

are undisputed.

       2)          The substance of paragraph 11 is admitted, although the record citation is

erroneous. The now-admitted contention appears at paragraph 23 of the Second Amended

Complaint.

       3)          Plaintiffs agree that the factual statements contained in paragraphs 12 and 13 are

undisputed.

       4)          The factual statements appearing at paragraph 14 are incomplete and, to the extent

they imply the plaintiffs have suffered no injury due to the State’s action, are misleading.

Hampel and Swaya, have been stripped of the legal right to enter and travel to and through

Oklahoma without impairment of their parenting rights and V. has been stripped of her right to

travel to Oklahoma with her parents. The complete interrogatory answers, consistent with the

affidavits filed by the plaintiffs Hampel and Swaya in support of Plaintiffs’ Motion for Summary

Judgment [Dkt. No. 62, Exhibits 1 & 2] establish the following undisputed facts:

       a)          Hampel’s and Swaya’s presence in Oklahoma would impair the right to
                   visit their child in the hospital if she falls ill; the right to make health care
                   decisions for their child; or standing before a court in guardianship
                   proceedings related to their child, to name a few.
       b)          Messrs. Hampel and Swaya have experienced the practical and emotional
                   consequences of Oklahoma’s Adoption Invalidation Law. Because the
                   Adoption Invalidation Law threatens non-recognition of each of their
                   parent-child relationships with V. by and in the State of Oklahoma, it
                   interferes with Messrs. Hampel’s and Swaya’s decision to bring their
                   daughter to the state in which she was born and the commitments they
                   made during the adoption process.
(Dkt.No.63. Ex.2, Interrogatory Answer No. 5 & Ex.3, Interrogatory Answer No. 5; Dkt.No.62,

Ex.1, ¶12 & Ex.2, ¶12.)


                                                      1
       c)     Messrs. Hampel and Swaya fear that, if they bring their daughter to see the
              town in which she was born, their parenthood of V. will not be respected
              by police, health officials, child welfare officials and other representatives
              of the State. They promised their daughter’s birth mother in Oklahoma
              that she would be able to visit with V. on an annual basis, but they have
              been unable to bring V. to Oklahoma to fulfill that promise as a result of
              the Adoption Invalidation Law. Messrs. Hampel and Swaya view open
              adoption as a relationship of trust between adoptive parents and a birth
              parent. V.’s birth mother terminated her parental rights with the
              understanding that the men actively would support a relationship between
              her and V., yet the Adoption Invalidation Law has blocked them from
              being able to support that relationship.
(Dkt.No.63. Ex.2, Interrogatory Answer Nos. 8, 10 & Ex.3, Interrogatory Answer Nos. 8, 10;

Dkt.No.62, Ex.1, ¶13 & Ex.2, ¶13.)

       d)     Further, because V.’s maternal grandfather by birth does not travel outside
              the State of Oklahoma, the law makes it impossible for V. to visit him at
              all. Messrs. Hampel and Swaya also have been unable to bring V. to meet
              many other persons in Oklahoma whom they would like her to meet, such
              as her birth mother’s family and close friends, including those who were
              present in the hospital on the day that she was born.
(Dkt.No.63. Ex.2, Interrogatory Answer Nos. 9, 10, 11 & Ex.3, Interrogatory Answer Nos. 9, 10,

11; Dkt.No.62, Ex.1, ¶14 & Ex.2, ¶14.)

       e)     The State’s refusal to recognize Messrs. Hampel and Swaya as her parents
              or to recognize her as their daughter has injured V. The Adoption
              Invalidation Law imposes a barrier to V. and her parents obtaining in or
              from Oklahoma all of the benefits and protections that should follow from
              their parent-child relationships anywhere in the country. In the meantime,
              V. continues to grow older without the benefit of interacting with her birth
              mother and extended family in Oklahoma during some of her most
              formative years – time that cannot be recovered.
(Dkt.No.63. Ex.2, Interrogatory Answer No. 10 & Ex.3, Interrogatory Answer No. 10; Dkt.

No.62, Ex.1, ¶15 & Ex.2, ¶15.)

       f)     Mr. Hampel, Mr. Swaya and V. have not traveled to Oklahoma since
              Oklahoma’s Adoption Invalidation Law went into effect because of the
              risks it imposes on the parent-child relationships between V. and her legal
              parents, Messrs. Hampel and Swaya.




                                                2
(Dkt.No.63. Ex.2, Interrogatory Answer Nos. 9, 13 & Ex.3, Interrogatory Answer Nos. 9, 13;

Dkt.No.62, Ex.1, ¶16 & Ex.2, ¶16.)

       5)      The factual statements appearing at paragraph 15 are incomplete and, to the extent

they imply the plaintiffs have suffered no injury due to the State’s action, are misleading. The

complete interrogatory answers, consistent with the affidavits filed by the plaintiffs Magro and

Finstuen in support of Plaintiffs’ Motion for Summary Judgment [Dkt. No. 62, Exhibits 14 & 15]

establish the following undisputed facts:

       a)      Oklahoma’s Adoption Invalidation Law impairs Ms. Finstuen’s and Ms.
               Magro’s right to visit their children in the hospital when ill; the right to
               make routine health care decisions for their children; the right to register
               their children for school; the right to enroll their children in child care;
               standing before a court in guardianship proceedings related to their
               children; the right to inherit property under intestacy rules; the right to
               obtain emergency medical leave when their children fall ill; and the right
               to obtain desperately needed benefits such as health insurance for their
               children, to name a few.
       b)      Because of Oklahoma’s Adoption Invalidation Law, Ms. Finstuen’s and
               Ms. Magro’s decision-making is impaired on a daily basis by having to
               take into account the possibility of non-recognition of Ms. Finstuen’s
               relationship with their children by innumerable persons in innumerable
               transactions, including in hospitals, schools or courts. For example,
               although Ms. Finstuen is their legal parent, she has avoided being the
               parent to sign forms of legal significance for the children in Oklahoma,
               such as permission and/or release forms associated with school and extra-
               curricular activities (for example, T-Ball, soccer, gymnastics); Girl
               Scout/Summer Camp authorization forms; and, medical and dental release
               forms for the children’s care. When their daughter K. had surgery, Ms.
               Finstuen avoided signing any legal documents associated with her hospital
               stay and worried that, if K. were in intensive care for any reason (where
               visits are limited to “immediate family members”), Ms. Finstuen could be
               excluded. Ms. Finstuen has not signed any of the enrollment documents
               pertaining to the children’s schooling. She does not feel she should take
               the risk that any document she signs pertaining to the children’s care or
               control will be deemed legally invalid. Yet Ms. Magro may be
               unavailable to sign documents in an emergency, causing the family great
               concern.




                                                 3
(Dkt.No.63. Ex.4, Interrogatory Answer No. 5 & Ex.5, Interrogatory Answer No. 5; Dkt.No.62,

Ex.14, ¶8 & Ex.15, ¶8.)

       c)     Oklahoma’s Adoption Invalidation Law has practical and emotional
              consequences for Ms. Finstuen and Ms. Magro. It compelled them to have
              extensive conversations with their extended family to try to head off
              concerns about the children if something happens to Ms. Magro. Both
              have increasing emotional anxiety about whether Ms. Finstuen’s
              parenthood will be respected in that event and about the potential for her
              to be denied rights of care and control over the children’s upbringing.
(Dkt.No.63. Ex.4, Interrogatory Answer No. 11 & Ex.5, Interrogatory Answer No. 11; Dkt.

No.62, Ex.14, ¶9 & Ex.15, ¶9.)

       d)     The Adoption Invalidation Law forces Ms. Finstuen and Ms. Magro to
              consider extraordinary and expensive measures to protect their children
              that should not be necessary, such as guardianships, and powers of
              attorney. They have discussed the painful possibility that they may be
              forced to leave the State and their jobs for the protection of their children.
              This would be a difficult decision for them. Ms. Magro has a very
              successful academic career and is up for tenure in the spring of 2006. Ms.
              Finstuen is nearing graduation from law school and has good prospects in
              Oklahoma as well. Being forced to move their family would be
              economically and professionally harmful and emotionally wrenching.
(Dkt.No.63. Ex.4, Interrogatory Answer No. 11 & Ex.5, Interrogatory Answer No. 11; Dkt.

No.62, Ex.14, ¶10 & Ex.15, ¶10.)

       e)     S. and K. have been injured by the State’s refusal to recognize Ms.
              Finstuen and Ms. Magro as their parents and them as Ms. Finstuen’s and
              Ms. Magro’s children, and by the resulting barrier to their or their parents
              obtaining all of the benefits and protections that follow from those parent-
              child relationships. Ms. Finstuen and Ms. Magro are deeply concerned that
              further harm to S. and K. in the form of economic, emotional, dignitary,
              physical, or other damages will result. S. and K. do not understand why
              Oklahoma would not want Ms. Finstuen to be their mother. Whenever Ms.
              Finstuen leaves, K. has become increasingly concerned about when and
              whether she will come home. Likewise, S. has become clingy, wanting to
              stay close to Ms. Finstuen. The family lives in fear of what could happen
              if a crisis were to arise in the family instead of knowing they can depend
              on the legal rights that most parents and children take for granted.
(Dkt.No.63. Ex.4, Interrogatory Answer Nos. 10, 12 & Ex.5, Interrogatory Answer Nos. 10, 12;

Dkt.No.62, Ex.14, ¶11 & Ex.15, ¶11.)


                                                4
       6)      Plaintiffs agree that the factual statements contained in paragraph 16 are

undisputed.

       7)      Plaintiffs incorporate by reference the additional undisputed facts, as set

forth in paragraphs 1 through 38 of Plaintiffs’ Motion for Summary Judgment (Dkt. No.

62).

                            II.     ARGUMENT AND AUTHORITY

       A.      PLAINTIFFS HAVE STANDING TO CHALLENGE OKLAHOMA’S ADOPTION
               INVALIDATION LAW.

       Defendants contend, erroneously, that plaintiffs lack standing to bring this challenge to

Oklahoma’s Adoption Invalidation Law. Plaintiffs have shown that they personally have

suffered “actual or threatened injury as a result of the putatively illegal conduct of the

defendant,” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979), and that the injury is

“likely to be redressed by a favorable decision,” Simon v. E. Ky. Welfare Rights Org., 426 U.S.

26, 38 (1976). See also Nova Health Sys. v. Gandy, 388 F.3d 744, 749 (10th Cir. 2004).

       Defendants do not dispute that they are the proper State officials charged with

enforcement of the Adoption Invalidation Law, nor do they suggest that the requested equitable

relief will not redress the harm that plaintiffs suffer.1 Rather, they contend that plaintiffs are

asserting a “generalized grievance” against illegal government activity without having suffered

1
  The Court previously found that the governor and attorney general are charged with executing
and enforcing the laws of Oklahoma, including specifically the Adoption Invalidation Law.
Order Den. Motion to Dismiss, Dkt. No. 20 at 6-8 (Dec. 7, 2004). Additionally, Defendant
Crutcher, joined after the Court issued its order, is the state official who “serve[s] as the
executive officer and supervise[s] the activities of the State Department of Health, and act[s] for
the Department in all matters except as may be otherwise provided in this Code; … and
enforce[s] rules and standards adopted by the State Board of Health.” OKLA. STAT. tit. 63,
§ 1-106(B)(2) (Supp. 2004). The Department of Health is responsible for issuing birth
certificates, OKLA. STAT. tit. 63, § 1-316 (2001), like the one denied to Jennifer and Lucy Doel
for their daughter E.



                                                   5
any actual or threatened invasion of a legally protected interest that is (1) concrete and

particularized, and (2) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (discussing the “injury in fact” prong of standing).

Defendants’ argument distorts the nature of plaintiffs’ injuries traceable to the Adoption

Invalidation Law.

       In the first place, there is nothing “generalized” about plaintiffs’ grievance. The plaintiffs

are same-sex couples with existing, legal parent-child relationships established through final

adoption decrees, and their children. They assert an invasion of their own rights (the recognition

of their existing parent-child relationships), not a general interest in the State’s interference with

the rights of others. Nor is their connection to Oklahoma tenuous. Plaintiffs either reside in

Oklahoma or have a specific reason to visit and would visit Oklahoma but for the Adoption

Invalidation Law.

       The harm is “actual” in that the Adoption Invalidation Law, which denies recognition of

a legal status, is in force and is self-executing. Unlike a criminal statute, for example, it does not

require additional and specific enforcement action leading to judicial or administrative

proceedings. Rather, the statute on its face withholds complete recognition of plaintiffs’ legal

relationships without the necessity of further inquiry or finding. The fact that plaintiffs, living

without the State’s relationship recognition and the protections it affords, may suffer further

economic harm or physical injury in the future does not minimize the State’s current interference

with their legal relationships. See, e.g., United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669, 686 (1973) (“In interpreting ‘injury in fact’ we made it clear

that standing was not confined to those who could show ‘economic harm’….”). It is not




                                                   6
necessary for a revolver to have discharged all its rounds before plaintiffs can show injury in

fact.

        Furthermore, the Adoption Invalidation Law’s mandate that the State shall not recognize

legal parent-child relationships of same-sex couples who participated in adoption proceedings in

other states creates a classification that denies these plaintiffs equal access to scores of statutory

and common law benefits, rights, protections and defenses under Oklahoma law. See, e.g.,

Plaintiffs’ Motion for Summary Judgment, Dkt. No. 62 at 13-14, nn. 6 & 7 (filed Dec. 1, 2005).

In the context of equal protection challenges, the Supreme Court has held that the injury in fact

analysis hinges on whether the government has erected a barrier making it more difficult for

members of one group to obtain benefits or protections than it is for members of another group.

Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656,

666 (1993) (The “injury in fact” in an equal protection case is the denial of equal treatment

resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.). See

also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (injury in fact is the

inability to compete on equal footing); Buchwald v. Univ. of N.M. School of Medicine, 159 F.3d

487 (10th Cir. 1998) (injury is the imposition of the barrier itself, citing City of Jacksonville);

Citizens for Equal Protection, Inc. v. Bruning, 290 F.Supp.2d 1004, 1008 (D. Neb. 2003), appeal

docketed, No. 05-2604 (8th Cir. June 10, 2005) (gay and lesbian citizens have standing to

challenge law that serves as barrier to engaging in the political process). In short, the plaintiffs

claim the type of constitutional injury that, according to the Supreme Court, has “long been

recognized as judicially cognizable.” Heckler v. Mathews, 465 U.S. 728, 738 (1984) (citations

footnote omitted). Cf. Romer v. Evans, 517 U.S. 620, 627-31 (1996) (comprehensive change in




                                                   7
legal status that singles out certain class of citizens for broad denial of protection effects “literal

violation” of equal protection).

        On its face, Oklahoma’s Adoption Invalidation Law unquestionably serves as a

significant barrier to plaintiffs’ ability to access the rights and responsibilities that different-sex

parents and their children may take for granted. But the harm does not stop there. The law also

interferes with the constitutionally protected liberty interest the plaintiff parents have in their

parental autonomy, including the fundamental right to make decisions concerning the care,

custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). Here,

each couple has described steps they have been compelled to take to protect their children from

unnecessary risks of harm because of the Adoption Invalidation Law. Such interference clearly

constitutes injury in fact as well.

        Finally, as a result of the Adoption Invalidation Law, Plaintiffs Doel have been unable to

obtain an accurate birth certificate reflecting the parent-child relationship between Jennifer and

Lucy and their daughter, E. As a result, this family currently is suffering a concrete,

particularized actual injury and standing unquestionably exists. Governmental entities often rely

on birth certificates as proof of a child’s identity and parentage. Even if an accurate certificate

were issued, as the State finally was compelled to do for Plaintiffs Hampel’s and Swaya’s

daughter, V., State officials easily may assume that these plaintiff families and others like them

fall within the Adoption Invalidation Law, rendering the birth certificate ineffective in securing

the child’s rights.



        B.      DEFENDANTS HAVE OFFERED NO LEGALLY COGNIZABLE JUSTIFICATION FOR
                FAILING TO FOLLOW THE CONSTITUTION’S FULL FAITH AND CREDIT
                REQUIREMENTS.




                                                    8
       Defendants attempt to circumvent the Full Faith and Credit requirement of the U.S.

Constitution by suggesting that adoption decrees are not the type of judgment falling within the

Clause’s mandate. Ironically, defendants precede their argument with the observation that “[t]he

Full Faith and Credit Clause is often misunderstood by litigants.” Defendants’ Motion for

Summary Judgment, Dkt. No. 63 at 9 (filed Dec. 19, 2005). It has been again here.2 There are

several flaws in defendants’ position.

       A proper full faith and credit analysis distinguishes between public acts and court

judgments. Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (“Our precedent

differentiates the credit owed to laws (legislative measures and common law) and to

judgments.”); Magnolia Pet. Co. v. Hunt, 320 U.S. 430, 437 (1943) (“The full faith and credit

clause and the Act of Congress implementing it have, for most purposes, placed a judgment on a

different footing from a statute of one state, judicial recognition of which is sought in another.”).

Defendants confuse this distinction. They wrongly rely on Nevada v. Hall, 440 U.S. 410 (1979),

to argue that requiring the State to recognize the validity of a final judgment is tantamount to

allowing one state to legislate the consequences of acts within the second state’s borders.

       In Hall, after the State of Nevada was sued in a California state court, the State of Nevada

attempted to invoke a Nevada statute to limit its tort liability. Resolving a classic conflict of

laws issue, the Supreme Court declined to require California to apply the Nevada statute in the

pending case when doing so would contradict California public policy. Defendants’ discussion

of Hall fails to note the Supreme Court began its Full Faith and Credit analysis by distinguishing

between acts and judgments, setting forth the general requirement that “[a] judgment entered in

2
  A proper application of Full Faith and Credit jurisprudence to the instant claims is set forth in
Plaintiffs’ Motion for Summary Judgment, Dkt. No. 62 at Section II.B. (Dec. 1, 2005), and is
incorporated by reference.



                                                  9
one State must be respected in another provided that the first State had jurisdiction over the

parties and the subject matter.” Hall, 440 U.S. at 422 (emphasis added).

       Each of the adoption decrees that underpin plaintiffs’ claims are final judgments entered

by a court having jurisdiction over the parties and the subject matter. The Supreme Court

already has held that a judicial decree affecting the legal status of persons properly within that

state’s jurisdiction must be recognized in another state even though they would not have been

accorded that status under the laws of the second state. Williams v. North Carolina, 317 U.S.

287, 298 (1942) (requiring North Carolina to recognize the change in marital status effected by a

Nevada divorce decree even though it would not have been granted under the laws of North

Carolina).

       Defendants’ contention, unsupported by authority, that adoption decrees are not the type

of judgment entitled to full faith and credit is likewise without merit. Adoption is accomplished

through judicial proceedings that result in final decrees that are not susceptible to modification.

1-4 ADOPTION LAW & PRACTICE, § 4.02 (Matthew Bender, 2003). The existence of a final

decree of adoption precludes the choice of law problems that might arise in other types of

ongoing domestic relations disputes. Ralph U. Whitten, Choice of Law, Jurisdiction, and

Judgment Issues in Interstate Adoption Cases, 31 CAP. U.L. REV. 803, 804 (2003). Scholars

uniformly have observed that every state must recognize a valid adoption decree rendered in

another state and that an adopted child may change residence or domicile without affecting the

validity of his or her adoption. EUGENE F. SCOLES ET AL., CONFLICT OF LAWS 678 (3d ed. 2000)

(“An adoption decree entered by a court of competent jurisdiction will ordinarily be recognized

everywhere.”); JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS 716 & nn.2-3 (1935)

(reporting that an adopted child “will be treated in every other state … just as adopted children




                                                 10
are treated in such other state,” and citing cases); see also RESTATEMENT (SECOND) OF

JUDGMENTS § 31(1)(a) (“A judgment in an action whose purpose is to determine or change a

person’s status is conclusive upon the parties to the action with respect to the existence of the

status, and rights and obligations incident to the status which under the procedures governing the

action are ordinarily determined therein….”).3 Not only have defendants failed to provide

authority to the contrary, but Defendant Edmondson, in his official capacity as Oklahoma

Attorney General, has formally opined that Oklahoma must afford full faith and credit to

adoption decrees from other states. 2004 OK AG 8.

       Next, defendants mistakenly argue that the regulation of adoption is an area within

Oklahoma’s exclusive province and, therefore, the Adoption Invalidation Law is excepted from

the Full Faith and Credit mandate. Adoptions occur in every state and this area of law is no more

“exclusive” or less subject to full faith and credit than any others. Oklahoma’s Adoption

Invalidation Law does not concern itself with adoptions effected in or by Oklahoma and

plaintiffs do not seek to adopt under Oklahoma law. The adoptive parent plaintiffs already are

the legal parents of plaintiff children through judgments entered in valid adoption proceedings

under the laws of other states that must be respected.

       Finally, confusing full faith and credit and res judicata principles, defendants argue that

Oklahoma need not recognize plaintiffs’ adoption decrees because the defendants were not

parties to the adoption proceedings. Such a rule would render the Full Faith and Credit Clause

3
  Even Oklahoma’s own Supreme Court has applied this constitutional mandate with full force in
the context of final decrees of adoption rendered in other states. Conville v. Bakke, 400 P.2d
179, 185 (Okla. 1965) (noting the constitutional hurdle imposed by full faith and credit
requirements in an action attempting to avoid the effect of a final adoption decree entered in a
Missouri proceeding); Ex parte Moulin, 203 Okla. 99, 101, 217 P.2d 1029, 1031 (1950) (where
validity not in question, Arkansas adoption decree entitled to full faith and credit under the
Federal Constitution).



                                                 11
meaningless. In addition, defendants’ position ignores the Supreme Court’s holding that a court

decree affecting the legal status of persons properly within the state’s jurisdiction must be

recognized in another state even though the same status would not have been accorded under the

laws of the second state. Williams v. North Carolina, 317 U.S. 287, 298 (1942).

       The chaos resulting from a contrary result would be alarming. If what defendants urge

really were the law, any state could second guess the adoptions completed in other states,

refusing to respect them and forcing re-litigation of whether that state thought the particular

parents who had adopted elsewhere should have been allowed to adopt or not. Finality would

turn to fiction and no adoption would be safe. The Full Faith and Credit Clause was intended to

avert such chaos by serving as a national unifying force. “It altered the status of the several

states as independent foreign sovereignties, each free to ignore the rights and obligations created

under the laws or established by the judicial proceedings of the others, by making each an

integral part of a single nation, in which rights judicially established in any part are given nation-

wide application.” Jean A. Mortland, Interstate Federalism: Effect of Full Faith and Credit to

Judgments, 16 U. DAYTON L. REV. 47, 76-77 (1990).

       Oklahoma’s Adoption Invalidation Law cannot override the mandate of the Full Faith

and Credit Clause of the U.S. Constitution, which requires defendants to recognize plaintiffs’

adoption decrees as valid. The Adoption Invalidation Law should be stricken down as

unconstitutional and its enforcement enjoined.



       C.      THE ADOPTION INVALIDATION LAW UNCONSTITUTIONALLY INFRINGES ON
               PLAINTIFFS’ RIGHT TO TRAVEL.

       Defendants contend that the Adoption Invalidation Law neither penalizes plaintiffs’ right

to travel nor impinges on a fundamental right. Rather, they insist that any effect on the



                                                 12
plaintiffs’4 right to travel is merely incidental. The argument lacks merit.5

       The Adoption Invalidation Law undoubtedly penalizes plaintiffs for traveling in and

through Oklahoma. It is hard to imagine a more draconian penalty than refusing to recognize

that a child has parents and is not legally an orphan. The State denies plaintiffs the protections

and benefits that flow from their legal parent-child relationships. The interference here is strong.

The litany of protections provided to recognized parents and their children under Oklahoma’s

statutory scheme is comprehensive. Additionally, because the Adoption Invalidation Law

facially denies plaintiffs both access to these statutory protections and recognition of their legal

parent-child relationships, the State has forced the adult plaintiffs to alter their upbringing of

their children to avoid or minimize the risks of traveling or remaining in Oklahoma, and of

interacting with Oklahoma officials. The effects on plaintiffs include deprivation of extended

family contact, the need to create extra legal documents and the need to avoid signing documents

in the capacity of a parent.

       Moreover, contrary to the defendants’ contention, the Adoption Invalidation Law does

impinge upon a fundamental right. Plaintiffs are not asserting in this litigation a fundamental

right to adopt. They already have adopted their children. Rather, they sue here as fit and active

4
  Defendants suggest that the right to travel claim is pressed only by the plaintiffs who reside in
Washington, who cannot safely travel to Oklahoma so E. can visit her birth mother and extended
family. However, the other plaintiffs, who moved to Oklahoma from other states, also have right
to travel claims. Saenz v. Roe, 526 U.S. 489, 500 (1999) (constitutional right to travel includes,
for those travelers who elect to become permanent residents, the right to be treated like citizens
of that state). All Oklahoma citizens who become legal parents in the State, either by adoption
or birth, and their children have full access to panoply of rights, obligations, protections and
defenses by virtue of their parent-child relationships. Yet legal parents, by adoption, and their
children who relocate to Oklahoma are denied the same recognition and access if the parents
happen to be same-sex couples, even though their parent-child relationships are just as valid.
5
 A proper analysis of plaintiffs’ Right to Travel claims is set forth in Plaintiffs’ Motion for
Summary Judgment, Dkt. No. 62 at Section E. (Dec. 1, 2005), and is incorporated by reference.



                                                  13
parents who have a protected liberty interest in their parental autonomy, including the

fundamental right to make decisions concerning the care, custody, and control of their children.

Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (reviewing the long history of Supreme Court

precedent on the subject); see also Davis v. Davis, 708 P.2d 1102, 1109 & nn. 33 & 34 (Okla.

1985) (interference with parental autonomy and privacy must be justified by compelling state

concern). The private realm of the family is sheltered from undue government interference – and

certainly fracture – and all plaintiffs share the fundamental right of family privacy. M.L.B. v.

S.L.J., 519 U.S. 102, 116 (1996) (“Choices about marriage, family life, and the upbringing of

children are … rights sheltered by the Fourteenth Amendment against the State's unwarranted

usurpation, disregard, or disrespect.”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

847-51 (1992) (recognizing Constitutional limits on State’s right to interfere with family

autonomy and parenthood); Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality

opinion) (“the Constitution protects the sanctity of the family”).

       The two court of appeals decisions relied upon by defendants are inapposite and

unhelpful to resolving this case. City of Akron v. Beil, 660 F.2d 166 (6th Cir. 1981), involved

residency requirements for candidates for city council. The court held that candidacy for public

office did not trigger the same heightened scrutiny of residency requirements that is used in cases

involving the fundamental right to vote. There is no comparable residency requirement involved

here, where fundamental rights are impaired.

       In Michael C. ex rel. Stephen C. v. Radnor Twp. Sch. Dist., 202 F.3d 642 (3rd Cir. 2000),

plaintiff, who had moved to Pennsylvania from Washington D.C., complained that

Pennsylvania’s procedures for placement of students with disabilities interfered with the

plaintiff’s right to travel, even though plaintiff would have been subject to the same procedural




                                                 14
requirements for educational placement had he transferred within the state. The Radner court

rejected the argument, finding that any burden on travel presented by the placement procedures

was merely incidental. Of course, Stephen C. was not told that if he moved to Pennsylvania he

automatically would cease being Michael’s father in the State’s eyes. Importantly, the

Pennsylvania procedures did not, as here, single out a particular class of persons to create a

complete barrier to accessing state benefits or to deny legal status recognition. Although

Stephen C. could obtain a proper education for Michael by following neutral placement

procedures, Oklahoma has provided no options that permit same-sex couples to protect their

valid and existing parent-child relationships when visiting or relocating to Oklahoma.



       D.      THE DEFENDANTS’ FLAWED ANALYSIS FAILS TO JUSTIFY THE ADOPTION
               INVALIDATION LAW’S DENIAL OF PLAINTIFFS’ RIGHTS TO EQUAL
               PROTECTION AND SUBSTANTIVE DUE PROCESS.

       The Defendants’ analysis of plaintiffs’ Fourteenth Amendment claims is overly simplistic

and relies primarily on three misguided premises. First, defendants wrongly suggest that the

rights of biological parents vis-à-vis their children differ from the rights of adoptive parents.

Second, defendants assert that the interest implicated by the plaintiffs’ Complaint is the “right to

adopt a child,” which they contend is not a fundamental right. Third, defendants contend that

homosexuality is not a suspect classification and, therefore, Oklahoma’s Adoption Invalidation

Law is entitled to a presumption of validity against any equal protection challenge. These

analyses are each flawed.6



6
  Proper equal protection and substantive due process analyses are set forth in Plaintiffs’ Motion
for Summary Judgment, Dkt. No. 62 at Sections C. & D. (Dec. 1, 2005), and are incorporated by
reference.




                                                  15
       Supreme Court precedent makes short shrift of defendants’ first premise. The Court has

refused to distinguish between biological and adoptive parents. Smith v. Org. of Foster Families

for Equal. & Reform, 431 U.S. 816, 843-44 & n.51 (1977) (noting that adoption is recognized as

the legal equivalent of biological parenthood). All legal parents, i.e., persons recognized as

parents by state law at the time the status is created, have a fundamental liberty interest in the

care, custody and rearing of their children that merits both procedural protection and substantive

protection under the Due Process Clause of the Fourteenth Amendment. Stanley v. Illinois, 405

U.S. 645, 651 (1972). See also OKLA. STAT. tit. 10, § 7505-6.5 (2001) (“After the final decree of

adoption is entered, the relation of parent and child and all the rights, duties, and other legal

consequences of the natural relation of child and parent shall thereafter exist between the adopted

child and the adoptive parents of the child and the kindred of the adoptive parents.”).

       Second, the “right to adopt” is not before the Court. No plaintiff seeks a decree of

adoption from any Oklahoma court. The adult plaintiffs and their children already enjoy legal

parent-child relationships. Under the Full Faith and Credit Clause, these parent-child and family

relationships continue in force as the parties move across state boundaries. RESTATEMENT

(SECOND) OF CONFLICT OF LAWS, ch. 11, topic 3, introductory note (1971). Oklahoma’s failure

to respect these family and parent-child relationships or to accord plaintiffs the rights and

obligations that arise from legal parenthood grossly infringes on plaintiffs’ fundamental rights.

       Moreover, although the right to adopt or its character is not an issue in this case, even a

non-fundamental right cannot be denied unequally to one group of people without adequate

justification. Romer v. Evans, 517 U.S. 620, 633 (1996) (classifications may not be drawn

merely for the purpose of disadvantaging the group burdened by the law). The defendants’

position, which relies on the Eleventh Circuit’s flawed analysis of Lawrence v. Texas, 539 U.S.




                                                  16
558 (2003) in Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir.

2004), is erroneous. The Supreme Court in Lawrence overruled Bowers v. Hardwick, 478 U.S.

186 (1986), and declared that the Texas sodomy prohibition facially violates the Due Process

Clause of the Fourteenth Amendment, which protects the liberty of adults to make decisions

regarding intimate relationships. The Supreme Court’s analysis invoked a long-established

protected constitutional right of fundamental dimension, and held that it protects gay and lesbian

adults just as it does heterosexuals.7



7
  Throughout its opinion, the Lawrence Court used sweeping language – applying only to the
most fundamental of liberty interests – to describe the constitutional right at stake. From its
opening paragraph, the Court emphasized that the case “involves liberty of the person both in its
spatial and more transcendent dimensions.” Lawrence, 539 U.S. at 562. The Court recognized a
“due process right to demand respect for conduct protected by the substantive guarantee of
liberty,” id. at 575. This is a “full right,” to be engaged in “without intervention of the
government,” part of “a realm of personal liberty which the government may not enter,” id. at
578 (emphasis added) (quotations omitted). The government “cannot demean” gay and lesbian
people or “control their destiny by making their private sexual conduct a crime.” Id. at 578.
Indeed, this right is “an integral part of human freedom.” Id. at 577.

        The Supreme Court was applying a well-established fundamental right, not identifying a
new one. The Court expressly invoked its earlier jurisprudence identifying a fundamental
substantive due process right of privacy and autonomy in intimate matters and relationships and
explicitly grounded its holding in that fundamental right. The Court directed that “the most
pertinent beginning point” was its decision in Griswold v. Connecticut, 381 U.S. 479 (1965),
invalidating a law against contraception because it violated the “right to privacy” of married
couples. Lawrence, 539 U.S. at 564. The Lawrence Court explained that decisions following
Griswold, including Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v. Wade, 410 U.S. 113
(1973), and Carey v. Population Servs. Int’l, 431 U.S. 678 (1977), made clear that this right to
privacy applies beyond married couples, to encompass the “right . . . to make certain
fundamental decisions affecting [an individual’s] destiny,” regardless of marital status or other
factors. Lawrence, 539 U.S. at 565. See also id. (Roe “confirmed once more” that the “liberty”
protected by the Due Process Clause “has a substantive dimension of fundamental significance in
defining the rights of the person”); id. (describing the privacy right at issue in Eisenstadt as a
“fundamental” human right) (emphasis added). The Court also quoted at length from its decision
in Planned Parenthood of Se. Penn. v. Casey, which had emphasized that “matters [] involving
the most intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment.” 505 U.S. 833, 851 (1992). See Lawrence, 539 U.S. at 574. The language the
                                                                                         continued —

                                                17
       The Lofton decision’s interpretation of Lawrence as other than an application of the

settled fundamental right to liberty in sexual privacy is unfaithful to the text and clear import of

the Supreme Court decision. See also Lofton v. Sec’y of Dep’t of Children & Family Servs., 377

F.3d 1275, 1303-14 (11th Cir. 2004) (Barkett, J., dissenting from denial of reh’g en banc)

(cogently responding to the Lofton panel’s misreading of Lawrence). Of course, the Eleventh

Circuit’s characterization of Lawrence is not binding. In Lawrence, the Court sought to prevent

states from discriminating against gay and lesbian people in the civil realm because of their

private sexual lives and relationships. Lawrence, 539 U.S. at 575. The Supreme Court’s

guidance calls into question the validity of any sweeping law that would deny gay and lesbian

people the right to adopt or its privileges simply to penalize, or express distaste for or

disapproval of, their protected intimate adult relationships or their parent-child relationships.

       Finally, defendants contend that, because, according to them, sexual orientation does not

constitute a suspect classification for the purpose of equal protection analysis, the Adoption

Invalidation Law is entitled to a presumption of validity. This analysis is wrong and in any event

misses the mark. Though the Adoption Invalidation Law cannot survive any level of

constitutional scrutiny, strict or heightened scrutiny undoubtedly applies because the Adoption

Invalidation Law impacts plaintiffs’ fundamental rights. Accordingly, it is unnecessary for the

Court to determine whether sexual orientation constitutes a suspect classification that also would

trigger strict or heightened scrutiny because plaintiffs have not relied upon that alternative

ground. The issue is not before the Court.


— continuation
Court used to describe these cases – on which it explicitly based its holding – demonstrates that
it was applying a pre-existing and fundamental right. Indeed, this analysis would have been
entirely superfluous had Lawrence been invoking a right of less than “fundamental significance.”




                                                  18
       Differential treatment of children based upon their parents’ conduct or status long has

triggered heightened scrutiny, under which the State must show at least that the classification is

substantially related to an important and legitimate state interest. Pickett v. Brown, 462 U.S. 1, 8

(1983). The State has not and cannot meet this standard.

       Moreover, plaintiff parents are fit and active parents who, as noted above, have a

protected liberty interest in their parental autonomy, including the fundamental right to make

decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530

U.S. 57, 65-66 (2000). The private realm of the family is sheltered from undue government

interference and all plaintiffs share a fundamental right of family privacy. Planned Parenthood

of Se. Pa. v. Casey, 505 U.S. 833, 847-51 (1992). The State can offer no justification for

interfering in the lives of these parents and families, let alone a compelling justification to which

the law is narrowly tailored, Edwards v. Valdez, 789 F.2d 1477, 1483 (10th Cir.1986) (to satisfy

strict scrutiny, as for discriminatory infringements of fundamental rights, the State must be able

to demonstrate an actual compelling governmental interest which the measure’s classification is

in fact narrowly tailored to serve).

       In addition to interfering with the plaintiffs’ parental and family autonomy, the law’s

classification invidiously discriminates against plaintiffs by targeting parents (and their children)

for being in same-sex relationships and raising children. As in Lawrence v. Texas, 539 U.S. 558

(2003), the State is unconstitutionally penalizing plaintiffs for the parents’ exercise of their

constitutionally protected fundamental liberty interest in having an intimate adult same-sex

relationship. The State imposes no such penalty on other adoptive parents, such as single parents

who may freely adopt despite having unmarried intimate relationships. Such a classification

triggers strict scrutiny. Dunn v. Blumstein, 405 U.S. 330, 337 (1972) (when challenged law




                                                  19
invades a fundamental right, analysis of the law’s discriminatory classification is subject to most

stringent analysis).

       The Adoption Invalidation Law targets gay and lesbian people and their children on its

face, embodying the State’s biased view that gay couples as a class are inferior and that their

children should be singled out for grave harm. The Supreme Court already has held that creating

or perpetuating such negative attitudes is an illegitimate state interest that fails even rational

basis review and that a purpose to make gay people (and, here, their children) unequal to

everyone else cannot be squared with the Equal Protection Clause. Romer v. Evans, 517 U.S.

620, 635 (1996); see also Lawrence v. Texas, 539 U.S. 558, 584 (2003) (O’Connor, J.,

concurring) (“A legislative classification that threatens the creation of an underclass … cannot be

reconciled with the Equal Protection Clause.”) (citing prior cases).



                                      III.    CONCLUSION

       For the reasons stated both herein and in plaintiffs’ Motion for Summary Judgment, the

defendants’ Motion for Summary Judgment should be denied.




                                                  20
                                          Respectfully Submitted,

                                            s/ Sandy Ingraham                 s/ Kenneth D. Upton, Jr.
                                             (signed by filing attorney                (Filing Attorney)
                                              with permission of Plaintiff Attorney)
                                            OBA No. 15322
                                            ATTORNEY FOR PLAINTIFFS
                                              Ingraham & Associates, P.L.L.C.
                                              Route 2, Box 369-B
                                              McLoud, OK 74851
                                              Telephone: (405) 964-2072
                                              Fax: (405) 964-2058 (fax)
                                              E-Mail: ingraham@mcloudteleco.com
                                            and

                                            __s/ Kenneth D. Upton, Jr.______
                                            Kenneth D. Upton, Jr.
                                            OBA No. 12906
                                            F. Brian Chase, pro hac vice
                                            ATTORNEYS FOR PLAINTIFFS
                                                Lambda Legal Defense and Education Fund,
                                                Inc.
                                                3500 Oak Lawn Avenue, Suite 500
                                                Dallas, TX 75219
                                                Telephone: (214) 219-8585
                                                Fax: (214) 219-4455
                                                E-Mail: kupton@lambdalegal.org
                                                           bchase@lambdalegal.org


                                    Certificate of Service

__X__ I hereby certify that on January 3, 2006, I electronically transmitted the attached
document to the Clerk of Court using the ECF System for filing. Based on the records currently
on file, the Clerk of Court will transmit a Notice of Electronic Filing to the following ECF
registrants:
                    Susan K. Noland, Sandra D. Rinehart and Kevin J. Behrens

_____ I hereby certify that on (date) _________________, I served the attached document by
(service method) ________________________________________________________ on the
following, who are not registered participants of the ECF System:


                                                                  ____s/ Kenneth D. Upton, Jr.____


                                              21

								
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